Tension between the administration and Senate Democrats already was sky-high when the pre-Christmas disclosure that the administration used unauthorized domestic surveillance in the war on terror raised it even higher. Attempts to suggest some sort of connection between that issue and the Alito nomination are intellectually vacuous, but the nominee still could end up paying the price as a stand-in for President Bush.
But even before the latest uproar Alito was expected to face exceptionally tough grilling by the Judiciary Committee regarding his views on abortion and the Supreme Court's 1973 decision legalizing it, Roe v. Wade.
The debate since Bush nominated Alito on October 31 has called attention to a shocking fact that nonetheless appears widely taken for granted: As some people see it — including some members of the Senate — to hold that Roe v. Wade was wrongly decided and should be reversed is prima facie evidence that a man or woman is unqualified to serve on the Supreme Court.
Fully to grasp what that means, it's necessary to understand that if the test of allegiance to Roe v. Wade had been applied in the past, it would have kept former Chief Justice William Rehnquist and, perhaps, the present Chief Justice, John Roberts, off the court, along with Justices Byron White, Antonin Scalia, and Clarence Thomas.
Justices Anthony Kennedy and Sandra Day O'Connor, though voting in 1992 to keep Roe in place, have backed some scaling-back. Even a strong supporter like Justice Ruth Bader Ginsburg called the Roe decision a socially disruptive tactical mistake. Does this mean Kennedy, O'Connor, and Ginsburg also don't make the cut?
And what about pro-choice commentators like Harvard Law School's Laurence Tribe, who said of Roe, “Behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found,” and Benjamin Wittes, editorial writer on judicial affairs for The Washington Post, who last year called Roe “a lousy opinion”?
Even so, The New York Times felt moved to declare Alito, a veteran of 15 years on the Third US Circuit Court of Appeals, “far outside the judicial mainstream” for his views.
The main elements in the case against him are 1985 memos he wrote as a Justice Department lawyer declaring opposition to Roe v. Wade and speaking proudly of his efforts to undo it. His record as a judge, however, presents a different picture. Alito's opinions in several abortion-related cases suggest a careful jurist who pays close attention to legal precedent and shapes his arguments along cautious, technical lines. Based on the record, it's impossible to be sure how he would deal with abortion as a member of the Supreme Court.
Thus the truly scary thing about the campaign to keep Alito off the court is the evidence that in some minds the mere supposition that a nominee is opposed to Roe v. Wade is grounds for barring him or her from serving. This is the mindset of fanaticism that supporters of legalized abortion love to impute to opponents.
The battle lines on Alito were drawn before the disclosures about domestic surveillance, but the heightened bitterness in Washington has introduced a wild card into this game. Before the fact, there is no telling whether the nominee can be insulated from its negative effects.
Russell Shaw is a freelance writer from Washington, D.C. You can email him at RShaw10290@aol.com.
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